“Just About Any Felony”: Court of Appeals of Georgia Finds Trial Judge Improperly Deemed Burglary a Crime of Dishonesty

Similar to its federal counterpart, OCGA § 24-6-609(a) states the following:

For the purpose of attacking the character for truthfulness of a witness:

(1) Evidence that a witness other than an accused has been convicted of a crime shall be admitted subject to the provisions of Code Section 24-4-403 if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the accused; or

(2) Evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of such crime required proof or admission of an act of dishonesty or making a false statement.

So, is burglary a crime of dishonesty or false statement that is automatically admissible under OCGA § 24-6-609(a)(2)?

That was the ruling by the trial judge in Robinson v. State, 2021 WL 977849 (Ga. App. 2021). In Robinson, Javarris Mashod Robinson was charged with felony obstruction of an officer and driving under the influence. At trial,

After Robinson advised the trial court that he intended to take the stand, the State moved to impeach him with evidence that he had been convicted of burglary, arguing that it involved an act of dishonesty. There were several discussions about the matter, but eventually, the trial court allowed the impeachment, explaining that “burglary is an act of dishonesty. Just about any felony is. That’s the trouble. Any felony rises to that level, so, yes, it is an act of dishonesty.”

After he was convicted, Robinson appealed, claiming that the trial improperly deemed his burglary conviction admissible under OCGA § 24-6-609(a)(2). The Court of Appeals of Georgia agreed, concluding that

No Georgia case has found that burglary constitutes a crime of dishonesty under OCGA § 24-6-609(a)(2), and there was no evidence presented at trial that established Robinson completed the burglary using deceitful means or false statements. We have approved a trial court’s admission of burglary convictions for purposes of impeachment under OCGA § 24-6-609(a)(1) when the court has applied the appropriate balancing test, which did not occur in this case. Additionally, no case law supports the trial court’s conclusion that “just about any” felony constitutes a crime of dishonesty. Accordingly, the trial court abused its discretion by allowing the State to impeach Robinson with evidence of the burglary under OCGA § 24-6-609(a)(2) absent engaging in the balancing test required to admit such evidence under OCGA § 24-6-609(a)(1).

-CM